NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Appellants, AFG Industries, Inc. and Asahi Glass Company, Ltd. (collectively, "AFG"), appeal from the judgment of the United States District Court for the Eastern District of Tennessee in AFG Industries, Inc. v. Cardinal IG Co., No. 96-CV-244 (April 7, 1998), granting appellee, Cardinal IG Company ("Cardinal"), summary judgment that Cardinal's accused product does not infringe AFG's United States Patent Number 4,859,532 ("the '532 patent"). The appeal was submitted for our decision following oral argument on December 9, 1998. Because we hold that the court wrongly resolved or failed to resolve crucial questions of claim construction, we vacate and remand.

BACKGROUND

The '532 patent is entitled "Transparent Laminated Product" and issued on August 22, 1989. It contains only one claim which is reproduced below:

1. A transparent laminated product comprising a transparent substrate and a 5-layered transparent coating composed of a first ZnO layer formed on the substrate, a second Ag layer formed on the first layer, a third ZnO layer formed on the second layer, a fourth Ag layer formed on the third layer and a fifth ZnO layer formed on the fourth layer, and having a visible ray transmission of at least 60 %, wherein the thickness of each Ag layer is from 60 to 250 .

'532 pat., col. 10, ll. 58-67.

The alleged infringing Cardinal product is called "LoE2." Both the Cardinal and AFG products include thin, optical coatings that are deposited in successive layers on glass for the purpose of reflecting infrared energy and thereby reducing heat transfer through the glass. Cardinal's product contains depositions of zinc oxide ("ZnO"), silver ("Ag"), and titanium oxide ("TiO"), while AFG's patent claims a five-layer filter composed of alternating layers of zinc oxide and silver.

AFG sued Cardinal, alleging that Cardinal's LoE2 product infringed the '532 patent. The district court, however, granted Cardinal summary judgment, holding that, as a matter of law, Cardinal's LoE2 product does not infringe the '532 patent, either literally or under the doctrine of equivalents. AFG appeals that judgment. We have jurisdiction under 28 U.S.C. § 1295(a)(1) (1994).

DISCUSSION

The district court granted summary judgment to Cardinal, holding that under Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 34 USPQ2d 1673 (Fed. Cir. 1995), Cardinal's LoE2 product must be viewed as containing seven layers of zinc oxide, silver and titanium oxide, and therefore does not infringe the '532 patent which calls for five layers, consisting of alternating layers of zinc oxide and of silver. We hold that the district court's apparent construction of "layer" is incorrect. In addition, other disputed terms were not defined at all. We therefore vacate the district court judgment and remand the case for further claim construction and such further proceedings as may be necessary.

As is well known, "the [d]etermination of infringement is a two-step process. First, the language of the claim must be interpreted. Second, the accused device must be compared to the claim language as interpreted." Read Corp. v. Portec, Inc., 970 F.2d 816, 821, 23 USPQ2d 1426, 1431 (Fed. Cir. 1992). The first step, claim construction, is a matter of law exclusively for the court, see Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1329 (Fed. Cir. 1995) (in banc); the second step involves a question of ultimate fact, see Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569, 219 USPQ 1137, 1140 (Fed. Cir. 1983). Thus, before the district court could properly have analyzed AFG's allegation that Cardinal's LoE2 product infringed, the court would have had to interpret correctly the disputed terms in the claim.

The only Discussion of claim construction in the district court's summary judgment opinion focuses on the meaning of the term "layer." Yet, no clear and correct definition is given in the district court's decision. The court merely quotes Southwall's Discussion of the "layers" in the Cardinal product, as viewed in the context of the Southwall patent. No definition of the term "layer" is actually given in the Southwall case, the source exclusively relied upon by the court to discuss "layer." Moreover, even if Southwall clearly defined the term "layer," that definition would not be dispositive of the correct definition of "layer" in the '532 patent. The Southwall and AFG patents use "layer" in different contexts. For example, the '532 patent appears to distinguish between "layer," a claim term, and "interlayer," which appears only in the written description. That distinction could be critical in this case. Therefore a precise and correct definition of "layer" is needed. *fn1

CONCLUSION

Summary judgment of non-infringement is therefore vacated and the case is remanded for further claim construction and such further proceedings as may be necessary.

COSTS

Defendant-Appellee to bear costs.

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